Coxe and Doss, JJ.
1. This appeal arises out of a suit for the recovery of a wife.
2. The defence is that at the time of the marriage it was stipulated between the parties that in the event of the husband taking another wife the wife should have the power to divorce herself and that in the exercise of that power the defendant divorced herself in December 1904.
3. The Subordinate Judge has found that the stipulation was made and that the plaintiff broke it by marrying a second time. But he has held that the divorce is invalid, because the defendant did not exercise the option given to her immediately on hearing of the second marriage. The Subordinate Judge accordingly decreed the suit.
4. The wife appeals. The learned vakeel for the appellant relying on the decision in Meer Ashruf Ali v. Meer Ashad Ali (1871) 16 W.R. 260 argues that the wife did not lose her option of declaring herself divorced by reason of the delay between the time, when she heard of the second marriage of her husband and the time, when she exercised her right. We cannot see that there is any real distinction between the case cited and the present one. If we follow that decision we are bound to hold that the defendant's divorce was valid and the suit must necessarily fail.
5. The learned pleader for the respondent has relied upon the authorities cited in the judgment of the learned Subordinate Judge and on certain passages in Wilson's Anglo-Mahomedan Law, second edition, page 163. But the passages, which have been read to us from these authorities, appear to deal only with cases in which the husband has, after marriage, given his wife the option of declaring herself divorced. In Wilson's Anglo-Mahomedan Law, page 168, it is stated-' It is a fact that nearly all of what is said on the subject in the Fatawa Alamgiri and the Hedaya has reference to permission given by the husband to the wife after marriage to divorce herself at her option in specified contingencies.' The cases referred to are therefore different from the case now before us in which the parties entered before marriage into this contract that the wife should have power to divorce herself under certain circumstances. This stipulation was a most important element in the marriage contract. That the above is a true distinction appears to be accepted in Hamidoolla v. Faizunnissa (1882) I.L.R. 8 Calc. 327, in which the learned Judges say, 'The Mahomedan law on the subject, which has been laid before us, provides for the delegation of the power of divorce by the husband to the wife on certain occasions by word of mouth, but it in no way, so far as it has been laid before us, limits the exercise of that power to those occasions* * * * * *. We are aware of no reason, why an agreement entered into before marriage between parties able to contract, under which the wife consented to marry on condition that, under certain specified contingencies, all of a reasonable nature, her future husband should permit her to divorce herself under the form prescribed' by Mahomedan law, should not be carried out.' We agree with this decision and think that we are not bound in dealing with a stipulation in a marriage contract, to be governed strictly by the rules laid down in the passages, which have been read to us, which deal with the exercise of the power of divorce by a wife, when an option is given by a husband after marriage. We think that, when a power is given to a wife by the marriage contract to divorce herself on her husband marrying again, then, if her husband does marry again, she is not bound to exercise her option at the very first moment she hears the news. The injury done to her is a continuing one and it is reasonable that she should have a continuing right to exercise the power. This was the view taken by the Court in the case of Meer Ashruf Ali v. Meer Ashad Ali(1871) 16 W.R. 260, which has already been cited. And that view was followed in Nuruddin v. Mussummat Chenuri (1905) 3 C.L.J. 49, in which it is clear that the wife exercised the power of divorcing herself some time after the contingency, which gave rise to it, occurred.
6. On reading the evidence we do not think that the delay, which the wife made in this particular case, was under the circumstances unreasonable.
7. Accordingly we must hold that the divorce was valid and the suit should have been dismissed.
8. The appeal is accordingly allowed with costs in both the Courts.